Ji Shiang, Inc.

1292 DECISIONS OF THE NATIONALLABOR RELATIONS BOARD 357 NLRB No. 108 Ji Shiang, Inc. and Local 318, Restaurant Workers’ Union. Case 29–CA–029927 November 2, 2011 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES On July 27, 2011, Administrative Law Judge Lauren Esposito issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Ji Shiang, Inc., Flushing, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Kathy Drew-King, Esq., for the Acting General Counsel. Brian Shenker, Esq. (Law Offices of Benjamin B. Xue, P.C.), of New York, New York, for the Respondent. Amy Tai, Esq. (Urban Justice Center), of New York, New York, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. This supple- mental proceeding was tried before me in Brooklyn, New York, on June 9, 2011. A compliance specification and amended compliance specification and notice of hearing were issued on February 18 and May 12, 2011, respectively, based upon an unpublished order of the Board dated November 9, 2010,1 which provided that Ji Shiang, Inc. take certain affirmative action, including offering Li Rong Gao and Xiao Hong Zheng employment in the positions they applied for and making them whole for any loss of earnings or other benefits resulting from Respondent’s discrimination against them. On February 7, 2011, the United States Court of Appeals for the Second Circuit issued its judgment enforcing the Board’s Order. On June 8, 2011, counsel for the Acting General Counsel (the General Counsel) filed and served a notice to amend the compliance specification, and when the hearing opened the next day General Counsel moved to make the relevant amendments. I granted General Counsel’s motion. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed 1 The Board’s November 9, 2010 Order was based on the decision and recommended order of Administrative Law Judge Steven Fish in Ji Shiang, Inc., JD(NY)–36–10, dated September 20, 2010. by the General Counsel and Respondent, I make the following FINDINGS OF FACT Discriminatees Li Rong Gao and Xiao Hong Zheng were employed by Guang Zhou Restaurant as a waitress and a cap- tain, respectively. When Respondent took over the operations of Guang Zhou Restaurant on June 2, 2009, it refused to hire Gao and Zheng. Administrative Law Judge Steven Fish found that Respondent refused to hire or consider Gao and Zheng for employment because they engaged in activities in support of the Charging Party Union, and because they engaged in other protected concerted activities, in violation of Section 8(a)(1) and (3) of the Act. Ji Shiang, Inc., JD (NY)–36–10 (September 20, 2010). On August 2, 2010, Respondent hired Gao and Zheng as a waitress and a captain. The parties agree that Gao’s backpay period terminates as of that date. However, the General Counsel contends that Zheng’s backpay period continued past her hir- ing, in that Zheng had been assigned fewer hours of work than the other captains employed by Respondent after she was hired, resulting in lower earnings. As a result, the General Counsel contends that the backpay period for Zheng extends to February 13, 2011, when Ji Shiang apparently closed. Ellen Farbin, a field examiner in the compliance division of Region 29, testified regarding her preparation of the backpay calculations for Gao and Zheng. Farbin has worked in the com- pliance division of Region 29 for about 8 years, and has pre- pared numerous backpay calculations during that time. Farbin testified that because she had no payroll or other records for the period June 2 through July 1, 2009, she calculated gross back- pay based upon Gao and Zheng’s reports of what they were earning at Guang Zhou and at Ji Shiang after they were hired. Farbin testified that because Respondent’s payroll records were available for the period July 1, 2009, through August 2, 2010, she based Gao and Zheng’s gross backpay on the average hours, wage rates, and tips earned by comparable wait staff and captains during that period. For Zheng, Farbin based her calcu- lations during the period August 2, 2010, to February 13, 2011, on Respondent’s payroll records. Farbin testified that her calculation of tips involved two sep- arate components. She began with the tip amounts contained in Respondent’s payroll records for comparable employees, and then added $200 per week, which was reported to her as an additional amount of tips each employee received that was not recorded in the payroll records. Wei Shen Tan, a waiter em- ployed by Respondent who had also been employed by Guang Zhou, testified regarding cash tips which were not documented in Respondent’s payroll records. Tan testified that he began working at Ji Shiang on the day it opened in June 2009. Tan testified that employees at Ji Shiang shared in a tip pool in ad- dition to their direct wages. Tan testified that for the month of June 2009 he received $600 direct wages in cash and a little more than $2000 in tips. He testified that beginning in July 2009 he was paid by check, and earned $4.60 (later $4.65) per hour in direct wages. Tan’s share of the tip pool was 8 cents until Gao and Zhen returned to work in August 2010, and was then increased to 9 cents. Tan testified that his monthly tip income totaled $600 to $700 per week on a good month, and JI SHIANG, INC. 1293 $400 per week when business was slower. However, he testi- fied that his total tip income never appeared on his pay stub,2 and that in general he earned approximately $200 to $300 in tips each week which were not recorded. Analysis and Conclusions A. General Legal Framework The objective in compliance proceedings is to restore to the extent feasible the status quo ante, by restoring the conditions which would have existed absent the Respondent’s unlawful conduct. See, e.g., Parts Depot, Inc., 348 NLRB 152, 153 (2006). The General Counsel is permitted “wide discretion” in choosing a formula to calculate backpay, and must only “estab- lish gross backpay amounts that are reasonable, and not arbi- trary.” Id., citing Performance Friction Corp., 335 NLRB 1117 (2001). Once the General Counsel has established the amounts of gross backpay due, the respondent then bears the burden of substantiating affirmative defenses, including willful loss of interim earnings and the failure of a discriminatee to mitigate damages. Midwestern Personnel Services, 346 NLRB 624, 625 (2006). When a respondent argues that a discriminatee has failed to adequately search for interim work, the respondent must satisfy a burden of coming forward with evidence that substantially equivalent jobs existed in the relevant geographic area during the backpay period. St. George Warehouse, 351 NLRB 961, 967 (2007). If the respondent does so, the burden then shifts to the General Counsel to “produce competent evi- dence of the reasonableness of the discriminatee’s job search.” Id. When a respondent argues that a discriminatee has willfully avoided or failed to retain substantially equivalent work, it must adduce evidence demonstrating that the discriminatee volun- tarily quit interim employment or lost interim work through deliberate or gross misconduct. Baker Electrics, 351 NLRB 515, 565 (2007), citing Minette Mills, 316 NLRB 1009, 1010 (1995); Basin Frozen Foods, 320 NLRB 1072, 1077 (1996). B. Respondent’s Specific Contentions I find that the gross backpay formula used by the General Counsel, as discussed by Farbin in her testimony, was reasona- ble.3 Respondent’s contention that the use of comparable em- ployees to calculate gross backpay was somehow unreasonable is contrary to well-settled Board law. See, e.g., Contractor Services, 351 NLRB 33, 35 (2007) (“The comparable or repre- sentative employee approach is an accepted methodology for computing backpay.”). Its argument that tips should not be included in the gross backpay calculations is equally meritless. Atlantic Limousine, 328 NLRB 257, 258 (1999) (including tips in gross backpay calculations). Indeed, Respondent provides no legal basis for either of these assertions. Nor does Respondent 2 Tan’s pay stubs for July 2009 state that he earned between $175 and $215 in tips per week. 3 Respondent contends in its posthearing brief that it had legitimate, nondiscriminatory reasons for refusing to hire Gao and Zheng on June 2, 2009. Such contentions were already litigated in the unfair labor practice proceeding before Judge Fish, and may not be raised again here. See, e.g., Willis Roof Consulting, 355 NLRB 280, 280 fn. 1 (2010). cite any precedent for its assertion that tips not included by Respondent in the employees’ paychecks should not be encom- passed in the gross backpay figures. In fact, the Board has spe- cifically declined to adopt such a rule. See Atlantic Limousine, supra at 258; Hacienda Hotel & Casino, 279 NLRB 601 (1986). Respondent’s argument that Zheng’s backpay period should also be terminated as of August 2, 2010, the date of her rein- statement, is also unavailing. Respondent was required under the Board’s order to offer Zheng the position that she applied for or a substantially equivalent position. The General Counsel contends, based upon payroll records provided by Respondent, that Zheng was not offered her position or a substantial equiva- lent, in that she was assigned fewer work hours than the other captains. Respondent admits in its posthearing brief that Zheng was not assigned as many hours as the other captains, but offers no legitimate reason for doing so or evidence to explain this distinction. As a result, the General Counsel’s gross backpay formula reasonably incorporated the difference between the work hours assigned to Zheng and those of other employees in her job classification. Finally, Respondent’s various arguments involving failure to mitigate theories are completely unsubstantiated, and must be rejected.4 Respondent claims in its brief that Gao did not make an adequate search for work, but it did not offer any evidence in support of this contention, including evidence regarding the availability of substantially equivalent jobs in the relevant geo- graphic area. St. George’s Warehouse, supra at 967. Respond- ent offered no evidence to support the assertion in its brief that Zheng was fired from her interim employment, let alone that she was discharged for deliberate or gross misconduct. Baker Electrics, supra at 534, 565. Nor is there any evidence in the record that Zheng voluntarily resigned substantially equivalent interim employment.5 Parts Depot, supra at 154. For all of the foregoing reasons, I find that the General Counsel’s proposed gross backpay figures are reasonable. I find that Respondent has failed to establish any defenses based on a failure to mitigate damages, and that no reductions should be made from the backpay calculations contained in General Counsel’s amended compliance specification. I shall therefore recommend that Respondent pay the amounts specified to the discriminatees, plus interest. THE REMEDY As stated above, I shall recommend that Respondent reim- burse the discriminatees, plus interest, in the amounts as set forth in the amended compliance specification as follows: Li Rong Gao $36,838.89 Xiao Hong Zheng 30,364.88 4 At the hearing, I rejected Respondent’s assertion that the General Counsel was required to pay for interpreters for Respondent’s case. A & A Insulation Services, 344 NLRB 322, 324–325 (2005); Domsey Trad- ing Corp., 325 NLRB 429 (1998). 5 Respondent’s contention that unemployment benefits received by Gao and Zheng should be deducted from gross backpay is contrary to the Supreme Court’s decision in NLRB v. Gullett Gin Co., 340 U.S. 361, 364 (1951). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ORDER Respondent Ji Shiang, Inc., Flushing, New York, its officers, agents, successors, and assigns, shall make whole the individu- als named below, by paying them the amounts following their names, plus interest to be computed in the manner prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), minus tax withholdings as required by Federal, State, and local laws: Li Rong Gao $36,838.89 Xiao Hong Zheng 30,364.88